1. In this Agreement, the following definitions apply:
(a) “Agreement” means this Agreement between the Parties, incorporating these Terms and Conditions.
(b) “Credit Policy” means the Credit Policy provided to the Customer by the Company.
(c) “Customer” means any person, firm, corporation, government, semi-government or local government department or authority, its successors, assignees, trustees, administrators or liquidators, to whom or to which Goods are provided or sold to by the Company.
(d) “Company” means Kompan Playscape Pty Ltd (ABN 22 010 572 335) trading as Kompan and its subsidiaries as defined in the Corporations Act 2001 (Cth) and each of their servants or agents.
(e) “Delivery” means delivery in accordance with the direction of the Customer’s purchase order constitutes delivery.
(f) “Goods” means any products and/or goods provided or sold to the Customer by the Company.
(g) “Parties” means the Company and the Customer.
(h) “PPSA” means the Personal Property Securities Act 2009.
(i) “Price” or “Prices” means the Price and/or Prices for the Goods as listed in the Price List issued from time to time in writing or by verbal advice from an authorised employee of the Company. All Prices are in Australian Dollars.
(j) “Price List” means the Price List issued by the Company from time to time listing the relevant Prices for its Goods and Services.
(k) “Secured Money” means any monies secured by the Company by way of a security interest.
(l) “Terms and Conditions” means these Terms and Conditions.
(m) “Website” means www.kompan.com.au.
2. Applicability and Acceptance of these Terms and Conditions
2.1 By entering into this Agreement and/or purchasing the Goods from the Company, the Customer accepts and agrees to be bound by these Terms and Conditions.
2.2 The Company may make changes to these Terms and Conditions from time to time to accommodate changes in law, business practice or the introduction of new Goods without notice to the Customer or by general notice or on its Website.
3. Copyright and Intellectual Property Rights
3.1 All copyright and intellectual property rights provided of the Goods remain the exclusive property of, the Company. When using the Goods, the Customer must comply with the law including, without limitation, copyright and intellectual property laws.
3.2 Unless permitted by law or as otherwise expressly permitted in this Agreement, the Customer must not authorise any third party to:
3.2.1 modify or make any alterations, additions, or amendments
to any part of the Goods; or
3.2.2 remove, alter, circumvent or tamper with any trademarks,
copyright notices, copyright protection devices,
disclaimers or other legal notices.
PRICES AND CHARGES
4. Supply of Goods
4.1 The supply of Goods is contingent upon the Customer complying with this Agreement.
4.1 The supply of Goods by the Company is subject to availability of the Goods.
4.2 Any order cancellation must be in writing and is subject to the Company’s approval.
5.1 Unless otherwise stated, all Prices quoted are exclusive of settlement discount, GST, duty, taxes and/or any other statutory charge or fee payable in connection with the sale of the Goods to the Customer by the Company.
5.2 All prices and the provision of credit to the Customer will accord with the Terms and Conditions, and Credit Policy.
5.3 The Company reserves the right to amend rates and/or Prices and/or its Price List from time to time without prior notice to the Customer.
6.1 Freight is subject to the following:
6.1.1 Any requested change to standard freight arrangements will be at the Customer’s expense and in accordance with these Terms and Conditions and the Company’s Credit Terms and Conditions;
6.1.2 Orders outside of Australia will have the appropriate freight charged; and
6.1.3 Delivery of orders to remote or rural areas will have the appropriate freight charged.
6.2 Delivery in accordance with the direction of the Customer’s purchase order constitutes delivery.
6.3 Claims for Goods lost or damaged in transit must be made with the carrier immediately after receipt of Goods and/or as soon as the Customer suspects that said Goods may be lost or damaged.
Until each invoice is paid in full, ownership of all Goods supplied remains with the Company.
8.1 The risk of the Goods passes to the Customer on delivery, and in accordance with the direction of the Customer’s purchase order constitutes delivery. The Company accepts no responsibility for the Goods once they have been delivered.
8.2 The Customer acknowledges that it is the Customer’s responsibility to ensure that all Goods purchased are insured from point of delivery.
9 Credit Terms
9.1 Payment of all credit accounts shall be made on or before thirty (30) days from the date of the end of month of the date of the invoice, except as otherwise agreed.
9.2 The Company may at any time, without notice, terminate or suspend the Customer’s right to purchase Goods from the Company on credit and shall not be liable for any damages, costs, penalties or charges incurred as a result of the non-supply of the Goods by the Company to the Customer.
9.3 The Company reserves its rights to suspend (automatically and without notice the end of month of the date of the invoice), all accounts unpaid at thirty-seven (37) days.
9.4 Suspended accounts may attract a default account keeping fee of two percent (2%) per month or $25.00 per invoice, whichever is the greater amount, until the account is returned to the agreed trading terms. The Customer agrees that that this is a fair and reasonable charge and is directly relevant to the likely damage that the Company may suffer as a result of non-payment by the Customer. Interest will be calculated on all outstanding amounts from the date of issue of the outstanding invoice from its end of month..
9.5 All invoices shall immediately become due and payable in the event of default on payment by the Customer of any invoice or account, regardless of whether or not some invoices may not otherwise have become due for payment.
9.6 Account payments made by Credit Card will be charged a processing fee as follows:
9.6.1 Visa / Master Card 2%
9.6.2 Please note American Express is not accepted by the Company.
10 Credit History
10.1 The Customer hereby gives the Company authority to make enquiries as to the credit and financial responsibilities of the Customer and/or the Customer’s Directors in order to suitably qualify the Customer’s capacity to incur debt and repay any amounts to the Company. These enquiries shall include but not be limited to obtaining reports from credit reporting agencies and references from current and/or past providers of credit to the Customer.
10.2 In accordance with section 18E(8)(c) of the Privacy Act 1988 (Cth), the Customer acknowledges that the Company has informed the Customer that certain items of personal information about the Customer contained in/or relating to its Application for Credit, and permitted to be kept on a credit information file, might be disclosed to a credit reporting agency. Furthermore, the Customer agrees, in accordance with s18H(3), s18K(1)(b), s.18K(1)(c), s18K(1)(h) and s18N(1)(b) of the Privacy Act 1988 that use by the Company of the relevant information referred to in those sections may occur for the purpose of assessing the Customer’s credit application.
SECURITY AND CHARGES
The Company reserves the following rights in relation to the Goods until all amounts owed by the Customer to the Company are fully paid:
11.1 Ownership of the Goods remain with the Company.
11.2 The Customer authorises an authorised agent or representative of the Company to enter the Customer’s premises (or the premises of any associated Company of the Customer) where the goods are located, without liability for trespass or any resulting damage, and retake possession of the Goods and the Customer agrees that the Company has an irrevocable license to do so.
11.3 The Customer authorises the Company to keep or resell any Goods repossessed pursuant to Clause 11 of this Agreement.
11.4 If the Goods are resold by the Customer, the Customer shall hold such part of the proceeds of any such sale as represents the invoice price of the Goods sold in a separate identifiable account as the beneficial property of the Company and shall pay such amount to the Company upon demand.
11.5 Notwithstanding the above, the Company shall be entitled to maintain an action against the Customer for the invoice price of the goods.
11.6 In connection with the Goods, while they remain the property of the Company, the Customer agrees that:
11.6.1 It has no right or claim to any interest in the Goods to secure any liquidated or un-liquidated debt or obligation that the Company may owe the Customer;
11.6.2 It cannot claim any lien over the Goods;
11.6.3 The Customer warrants and undertakes that the Customer will not create any absolute or defensible interest in the Goods in relation to any third party except as may be authorized by the Company in writing; and
11.6.4 where the Customer is in actual or constructive possession of the Goods:
22.214.171.124 Will not deliver them or any document of title to the Goods to any person except as directed by the Company; and
126.96.36.199 Will be while in possession of the Goods as a bailee of the Goods and owes the Company the duties and liabilities of a bailee.
11.7 Pending payment in full for the Goods, the Customer:
11.7.1 must not supply any of the Goods to any person outside of its ordinary or usual course of business;
11.7.2 must not allow any person to have or acquire any security interest in the Goods;
11.7.3 must insure the Goods for their full insurable or replacement value (whichever is higher) with an insurer licensed.
11.8 Despite the above provision contained in Clause 3 of this Agreement, if the Customer supplies any of the Goods to any person before all moneys payable have been paid to the Company (and have not been claimed or clawed back by any person standing in the place of or representing the Customer), the Customer agrees that:
11.8.1 it holds the proceeds of re-supply of the Goods on trust for and as agent for the Company immediately when they are receivable or received;
11.8.2 The Customer must either pay the amount of the proceeds of re-supply to the Company immediately when they are received or pay those proceeds into an account with a bank or a financial institution or deposit taking institution as trustee for the Company.
12.1 As security for payment to the Company of all moneys payable by the Customer of its obligations generally under this Agreement, the Customer charges in favour of the Company the whole of its undertaking, property and assets (including without limitation all of the Customer’s interests, both legal and beneficial, in freehold and leasehold land) both current and later acquired.
12.2 The Customer irrevocably appoints each officer as the Customer’s attorney to do all things necessary to create and register each such charge.
12.3 Upon demand by the Company, the Customer agrees to immediately execute a mortgage or other instrument in terms satisfactory to the Company to further secure payments of the money payable by the Customer.
12.4 If the Customer fails within a reasonable time of such demand to execute such mortgage or other instrument, then the Customer acknowledges that the Company may execute such mortgage or other instrument as the Customer’s attorney pursuant to the appointment of the Company as the Customer’s attorney set out in this Agreement.
13 Personal Property Securities Act 2009 (Cth)
13.1 The Customer acknowledges that this Agreement will constitute a security agreement which create a security interest in favour of the Company over all present and after acquired Goods supplied by the Company to secure the payment of the Price or any other amount owing under this Agreement from time to time including further advances.
13.2 The Customer acknowledges that by accepting this Agreement and by virtue of the retention of title clause as provided for in Clause 7 of this Agreement, the security interest is a purchase money security interest (“PMSI”) as defined under Section 14 of the PPSA for all present, after acquired Goods including any Commingled Goods.
13.3 The security interest will continue to apply as an interest in the Collateral for the purposes of PPSA with priority over registered or unregistered security interest.
13.4 The Company may register the security interest as PMSI on the Personal Property Securities Register (“PPSR”) under the PPSA without providing further notice to the Customer.
13.5 The Customer agrees the Company is not required to disclose information pertaining to the Company’s security interest to an interested party unless required to do so pursuant to the PPSA or under general law.
13.6 The Customer agrees and undertakes:
(a) To sign any documents and/or provide further information reasonably required by the Company to register financing statement or financing change statement on the PPSR;
(b) To indemnify the Company for all expenses and/or costs incurred by the Company in registering a financing statement or financing change statement on PPSR including the costs of amending, maintaining, releasing and enforcing any security interest in the Goods;
(c) Not to register and/or make a demand to alter a financing statement in the collateral without prior written consent of the Company;
(d) To provide the Company with seven (7) days written notice of any change or proposed change to the Customer’s company name, address, contact details, or other changes in the Customer’s details registered on the PPSR;
(e) To waive any rights of enforcement under Section 115 of the PPSR for collateral not used predominantly for personal, domestic or household purposes;
(f) To waive any rights to receive verification statement in respect of any financial statement or financing charge statement under Section 157 of the PPSA.
14 Warranty & Replacement
14.1 All warranties and replacement of goods sold by the Company are provided in accordance with the schedule provided on its Website.
15 Limitation of Liability
15.1 The Company shall not be liable for any contingent, consequential, direct/indirect or punitive damages or loss arising, in relation to the ownership or use of the Goods, whatsoever. The Customer acknowledges this express limit or liability and agrees to limit any claim accordingly.
15.2 The Company will not be held liable for any loss or damage incurred due to a Force Majeure, which means any cause outside the parties’ reasonable control, including but not limited to an act of God, government or quasi government, act or regulation, riot, act of terrorism, war, flood, fire, industrial disputes and epidemics or any risks to health or safety.
15.3 The Company’s liability for any faulty or defective goods will at the sole discretion of the Company be limited to:
(i) the replacement of the goods or supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the costs of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired.
16.1 The Customer must pay to the Company any costs, charges and expenses (including legal fees and costs on a full indemnity basis as a liquidated debt) incurred by the Company in connection with the entry into this Agreement, the exercise or attempted exercise of any power, right or remedy under these Terms and Conditions and/or the failure of the Customer to comply with these Terms and Conditions.
17.1 This Agreement is deemed to have been entered into in the State of Queensland, Australia. Any legal action arising out of, or in respect of this Agreement and/or its interpretation must be brought only in the State of Queensland or another jurisdiction if it is deemed appropriate by the Company.
17.2 The Parties further agree to issue any proceedings in the Brisbane registry of the appropriate court having monetary jurisdiction over the matter or another jurisdiction if it is deemed appropriate by the Company.
The terms contained in this Agreement are binding, and cannot be altered except by clear, written acceptance of the alteration by the Company and the Customer.